Deciphering the Fair Use Doctrine: Campbell v. Acuff-Rose ...

DECIPHERING THE FAIR USE DOCTRINE:CAMPBELL v. ACUFF-ROSE MUSIC, INC.

INTRODUCTION

Shortly after England's enactment of a copyright statute in 1709,the English courts upheld the fair abridgement, or as it was latercalled, the fair use, of copyrighted material.' American courts alsorecognized this fair use privilege, permitting one author to use thecopyrighted work of another author.2 Until 1976, the privilege re-mained a judicially-created doctrine in American courts.3 Courtsgranted the privilege to alleged copyright infringers after conducting acase-specific analysis of the facts giving rise to the use.4 In 1976, Con-gress codified the fair use privilege in the Copyright Act of 1976, sec-tion 107 of Title 17 of the United States Code ("section 107").5

Section 107 lists four factors for courts to consider when deter-mining whether a use of a copyrighted work is a fair use.6 However,the factors are broadly construed and have led to numerous interpre-tations.7 As a result, the United States Supreme Court has begun todevelop a more definitive method for determining what is a fair use.8

In Campbell v. Acuff-Rose Music, Inc.,9 the Supreme Court reliedon the guidance of precedent in applying section 107 to determinewhether a particular song was a fair use of a copyrighted work.' 0 In

1. Act for the Encouragement of Learning, 8 Anne ch. 19 (1709); Pierre N. Leval,Toward a Fair Use Standard, 103 HARv. L. REV. 1105, 1105 (1990).

2. Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1170 (1994).3. William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presump-

tions, And Parody, 11 CARDozo ARTS & ENT. L.J. 667, 669 (1993).4. Id. at 668-69.5. Leval, 103 HARv. L. REv. at 1105.6. 17 U.S.C. § 107 (1988 & Supp. V). The statute provides in relevant part:Notwithstanding the provisions of sections 106 and 106A, the fair use of a copy-righted work.., is not an infringement of copyright. In determining whetherthe use made of a work in any particular case is a fair use the factors to beconsidered shall include-(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copy-

righted work as a whole; and(4) the effect of the use upon the potential market for or value of the copy-

righted work.Id.

7. Leval, 103 HARv. L. REv. at 1105-06.8. See infra notes 197-247 and accompanying text.9. 114 S. Ct. 1164 (1994).

10. Campbell, 114 S. Ct. at 1171-79; see infra notes 197-247 and accompanyingtext.

CREIGHTON LAW REVIEW

1964, Roy Orbison and William Dees composed a song entitled Oh,Pretty Woman and assigned their rights to the rock ballad to Acuff-Rose Music, Inc. ("Acuff-Rose")." In 1989, a rap music group knownas "2 Live Crew" wrote a song called Pretty Woman and released itlater that year. 12 Acuff-Rose sued 2 Live Crew and the group's recordcompany for copyright infringement. 13

This Note will first examine how the Court reached its decision inCampbell.14 .This Note will then outline the historical development ofthe fair use doctrine. 15 Next, this Note will then review Court deci-sions which have interpreted, shaped, and applied the fair use testestablished in section 107.16 This Note concludes that the Court's in-terpretation of section 107 was in accordance with past court decisionsand was supported by other considerations that the Court did notaddress.17

FACTS AND HOLDING

In 1964, Roy Orbison and William Dees composed a rock song en-titled Oh, Pretty Woman. I s The songwriters assigned their rights in

11. Campbell, 114 S. Ct. at 1168.12. Id.13. Id.14. See infra note 18-77 and accompanying text.15. See infra notes 78-91 and accompanying text.16. See infra notes 92-196 and accompanying text.17. See infra notes 197-261 and accompanying text.18. Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1168 (1994). Oh, Pretty

Woman by Roy Orbison and William Dees includes the following lyrics:Pretty Woman, walking down the street,Pretty Woman, the kind I like to meet,Pretty Woman, I don't believe you, you're not the truth,No one could look as good as youMercyPretty Woman, won't you pardon me,Pretty Woman, I couldn't help but see,Pretty Woman, that you look lovely as can beAre you lonely just like me?Pretty Woman, stop a while,Pietty Woman, talk a while,Pretty Woman give your smile to mePretty Woman, yeah, yeah, yeahPretty Woman, look my way,Pretty Woman, say you'll stay with me'Cause I need you, I'll treat you rightCome to me baby, Be mine tonightPretty Woman, don't walk on by,Pretty Woman, don't make me cry,Pretty Woman, don't walk away,Hey, O.K.If that's the way it must be, O.K.I guess I'll go on home, it's lateThere'll be tomorrow night, but wait!

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the song to Acuff-Rose Music, Inc. ("Acuff-Rose"), who registered thesong for copyright protection. 19 Twenty-five years later, 2 Live Crew,a rap music group, wrote a song called Pretty Woman.20 Although 2Live Crew's manager assured Acuff-Rose that the group would com-pensate Acuff-Rose for the use of the song and would identify the origi-nal song owners and authors upon release of the 2 Live Crew version,Acuff-Rose refused to grant the group permission to parody the origi-nal work.2 1

Despite Acuff-Rose's response, 2 Live Crew released its song inJune or July of 1989.22 In 1990, about a year after 2 Live Crew re-leased Pretty Woman, Acuff-Rose sued the music group and thegroup's record company for copyright infringement. 2 3

The United States District Court for the Middle District of Ten-nessee considered whether Pretty Woman made fair use of the copy-

What do I seeIs she walking back to me?Yeah, she's walking back to me!Oh, Pretty Woman.

Roy ORBISON & WiLLLm DEES, Oh, Pretty Woman (Acuff-Rose Music 1964).19. Id. at 1168.20. Id. 2 Live Crew consists of Luther R. Campbell, Christopher Wongwon, Mark

Ross, and David Hobbs. Id.; Pretty Woman by 2 Live Crew includes the following lyrics:Pretty woman walkin' down the streetPretty woman girl you look so sweetPretty woman you bring me down to that kneePretty woman you make me wanna beg pleaseOh, pretty womanBig hairy woman you need to shave that stuffBig hairy woman you know I bet it's toughBig hairy woman all that hair it ain't legit'Cause you look like 'Cousin It'Bald headed woman girl your hair won't growBald headed woman you got a teeny weeny afroBald headed woman you know your hair could look niceBald headed woman first you got to roll it with riceBald headed woman here, let me get this hunk of biz for yaYa know what I'm saying you look better than rice a roniOh bald headed womanBig hairy woman come on inAnd don't forget your bald headed friendHey pretty woman let the boysJump inTwo timin' woman girl you know you ain't rightTwo timin' woman you's out with my boy last nightTwo timin' woman that takes a load off my mindTwo timin' woman now I know the baby ain't mineOh, two timin' womanOh pretty woman.

2 LIVE CREw, Pretty Woman, on As CLEAN As THEY WANNA BE (Skyywalker Records1989).

21. Campbell, 114 S. Ct. at 1179-80.22. Id.23. Id.

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righted original.24 The court balanced the four elements necessary toresolve this issue as instructed by section 107 of Title 17 of the UnitedStates Code ("section 107"), which states in part:

(1) the purpose and character of the use, including whethersuch use is of a commercial nature or is for nonprofit educa-tional purposes; (2) the nature of the copyrighted work; (3)the amount and substantiality of the portion used in relationto the copyrighted work as a whole; and (4) the effect of theuse upon the potential market for or value of the copyrightedwork.

25

In reaching its decision, the district court examined the first fac-tor, the nature and purpose of the use.26 The court noted that Con-gress had included parody as a medium which may be affordedprotection. 27 The court found that the rap version was clearly a par-ody, demonstrating "how bland and banal the Orbison song seems tothem [2 Live Crew]." 28

After concluding that the second factor weighed in favor of Acuff-Rose because the copyrighted work was creative in nature, the courtproceeded to analyze the third element, the quantity and quality ofmaterial taken from the original.29 According to the Affidavit of Acuff-Rose's musicologist, Earl V. Spielman, the derivative version includedthe same song name, key lyrics, open drum beat, melody, guitar re-frain and chorus.30 Although the court recognized that the workswere substantially similar in composition, Acuff-Rose failed to demon-strate how the rap group adapted more of the copyrighted work thanwas necessary to "conjure up" the original work.31 Furthermore, thecourt concluded that this was not a case of verbatim copying and that2 Live Crew used an appropriate portion of Oh, Pretty Woman.32

Finally, the court considered the fourth element, the effect of theuse upon the market. 33 Because the audience for each work wasclearly different, the court decided that it was unlikely that the parodywould adversely affect the original song's market.34 The court alsodisregarded Acuff-Rose's argument that the rap version would pro-

24. Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150, 1152 (M.D. Tenn. 1991),appeal dismissed, 929 F.2d 700 (6th Cir. 1991), rev'd, 972 F.2d 1429 (6th Cir. 1992), cert.granted in part, 113 S. Ct. 1642 (1993), rev'd, 114 S. Ct. 1164 (1994).

25. Id. at 1153-59; 17 U.S.C. § 107 (1988 & Supp. V).26. Campbell, 754 F. Supp. at 1154.27. Id.28. Id. at 1155.29. Id. at 1155-56.30. Id. at 1156.31. Id.32. Id. at 1157.33. Id.34. Id. at 1158.

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hibit them from promoting "future derivative works" and Acuff-Rose'sclaim of copyright infringement based on the impact of the criticism. 35

The court granted 2 Live Crew's motion for summary judgment afterconcluding that the group's song was a protected fair use. 36

Acuff-Rose appealed to the United States Court of Appeals for theSixth Circuit.37 The Sixth Circuit interpreted section 107, findingthat works of comment and criticism did not infringe on copyrights. 38

The court included parody within the scope of the section 107 excep-tions.39 The Sixth Circuit then applied the four statutory factors setout in section 107 in order to decide whether 2 Live Crew's derivativework fell within the parameters of the exception. 40

In assessing the purpose and character of the use, the court ac-cepted the district court's determination that the derivative work wasa parody, despite the district court's failure to detect any thematic re-lationship existing between the two works.4 1 The court then focusedon the district court's finding that the primary objective of 2 LiveCrew's releasing its album was to make a profit. 42 According to theCourt, the commercial nature of a work is not by itself determinativeof whether it is a fair use.43 However, the Court found that the dis-trict court erred in failing to adequately emphasize this fact.44 Uponreview of the parody's commercial nature, the court concluded that thefirst factor weighed in favor of Acuff-Rose. 4 5

35. Id.36. Id. at 1160.37. Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1431 (6th Cir. 1992), cert.

granted in part, 113 S. Ct. 1642 (1993), rev'd, 114 S. Ct. 1164 (1994).

38. Id. at 1435.39. Id.40. Id. at 1435-39.41. Id. at 1435-36 n.8. In his dissent, Judge David A. Nelson expressed his inabil-

ity to understand why the majority had such strong reservations in concluding that thederivative work was a parody. Id. at 1441. According to his dissent, the use imitatedand transformed the copyrighted work to produce a satiric effect. Id. at 1442. JudgeNelson stated that in the original song, Oh, Pretty Woman, a lonely man walks down astreet and sees an attractive woman who he hopes to take home with him. Id. JudgeNelson stated that in the derivative song, Pretty Woman, a man runs into a hairy wo-man and her bald-headed friend as he walks down a street. Id. Judge Nelson concludedthat the rap group criticized the original song by demonstrating to its listeners thatstreetwalkers are not romantic, yet were absurdly included in Orbison's romantic bal-lad. Id. at 1441-42 (Nelson, J., dissenting).

42. Campbell, 972 F.2d at 1441-42.43. Id. at 1436-37.44. Id. at 1437.45. Id.

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Next, the court examined the nature of the copyrighted work.46

The creative status of Oh, Pretty Woman was not contested and thefactor again weighed in favor of Acuff-Rose. 47

When considering the substantiality of the use, the court appliedthe same test as used by the district court, which required a determi-nation of whether the parodist utilized a portion of the original workwhich was greater than necessary to conjure up the original work.48

The test not only required the court to assess the quantitative natureof the taking, but also to assess the qualitative nature of the taking.49

The court decided that, although the taking was not quantitativelysubstantial, the taking was clearly qualitatively substantial because 2Live Crew used the guitar riff from the original work, and may haveeven recorded the riff verbatim.50

Finally, the court examined the use's effect on the market.5 1 Inthis case, the court determined that the nature of the use was entirelycommercial, and therefore, presumed that the use would likely affectthe markets for the original and derivative works.52

The Court placed significant emphasis on 2 Live Crew's primaryobjective of making a profit from the use.53 For this reason, the courtheld that the parody was not a fair use and concluded that the districtcourt erred in granting summary judgment to 2 Live Crew.54 As aresult, the Court remanded the case to the district court. 55

2 Live Crew appealed the Sixth Circuit's decision to the UnitedStates Supreme Court.56 The Supreme Court granted certiorari to de-

46. Id.47. Id. at 1436.48. Id. at 1437-38.49. Id. at 1437.50. Id. at 1438.51. Id. at 1438; The court noted that this element has been considered by courts to

be the most important element. Id.52. Campbell, 972 F.2d at 1441-42.53. Id. at 1439.54. Id. Judge Nelson in his dissent criticized the majority's application of section

107. Id. at 1443. First, Judge Nelson challenged the court's conclusion that commercialparody is presumptively unfair since the ultimate goal of the copyright law is to en-courage creativity for the public good. Id. at 1443-44. He then argued that the secondfactor, the nature of the copyrighted work, should weigh in favor of 2 Live Crew sincethe original song had been published several years prior to the rap group's publication.Id. at 1444. Judge Nelson recognized that copying verbatim from the original songshould not be protected and concluded that the portion used by 2 Live Crew was neces-sary for its audience to recognize the original song and did not amount to verbatimcopying. Id. at 1444-45. In concluding his analysis, Judge Nelson examined the audi-ences targeted by each work. Id. at 1445. The original targeted a country music, mid-dle-America audience, while 2 Live Crew's version was aimed at the black populace whowere once consumers of "race" records. Id. at 1443-45 (Nelson, J., dissenting).

55. Campbell, 972 F.2d at 1439.56. Campbell, 114 S. Ct. at 1164.

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termine whether 2 Live Crew's use of Oh, Pretty Woman was worthy ofprotection under the fair use doctrine.57

As part of its analysis, the Court first established that 2 LiveCrew's song infringed on the original song's exclusive rights pursuantto section 106 of the Copyright Act ("section 106"), which provides inpart:

Subject to sections 107 through 120, the owner of copyrightunder this title has the exclusive rights to do and to authorizeany of the following: (1) to reproduce the copyrighted work incopies or phonorecords; (2) to prepare derivative works basedupon the copyrighted work; (3) to distribute copies or pho-norecords of the copyrighted work to the public by sale orother transfer of ownership, or by rental, lease, or lending.58

In determining whether Pretty Woman fell within the scope of the ex-ceptions to section 106, which are outlined in section 107, the Courtdiscussed the first factor, the "purpose and character of the use, in-cluding whether such use [was] of a commercial nature or [was] fornonprofit educational purposes." 59 In addressing the characteristicsof the use, the Court looked to whether the new work was "transform-ative" and whether it added new meaning to the original work.60 TheCourt characterized 2 Live Crew's work as parody, meaning that itcriticized the original work and society at large.61 The Court foundthat the derivative work added to the original work by "commentingon the original or criticizing it, to some degree."6 2 Accordingly, theCourt stated that 2 Live Crew's version, which juxtaposes a man's ac-count of his fantasy with a man's vulgar demand for sex, criticized theoriginal work's disregard of the harsh reality of street life.6 3

In evaluating the second statutory factor, the Court discussed the"nature of the copyrighted work."6 4 Although the original work fellwithin the protective purpose of the copyright, the Court reasonedthat such a fact is irrelevant when the derivative work is a parody. 65

The Court then addressed the third factor, "'amount and substan-tiality of the portion used in relation to the copyrighted work as awhole.' "66 Unlike other derivative works, parody must copy enough of

57. Campbell v. Acuff-Rose Music, Inc., 113 S. Ct. 1642 (1993) (granting certiorariin part).

58. Campbell, 114 S. Ct. at 1169; 17 U.S.C. § 106 (1988 & Supp. V).59. Campbell, 114 S. Ct. at 1171.60. Id.61. Id. at 1173.62. Id.63. Id.64. Id. at 1175.65. Id.66. Id.

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the original so as to make the focus of its criticism recognizable. 67

Although 2 Live Crew may have copied the "heart" of the original bal-lad by using the first line and opening riff of the original song, theCourt recognized the group's noticeable departure from the originallyrics.6 8 The group incorporated into its version distinctive soundssuch as "scraper" noises and altered drum beats.69 The Court con-cluded that such a use was necessary for the group to achieve its criti-cal objective.

70

Finally, the Court discussed the fourth fair use factor which re-quires review of the use's effect upon the market for the original workand upon the market for other derivative versions of the original. 7 1

The Court found that a critical parody and an entertaining ballad tar-get different audiences. 72 Therefore, the Court reasoned that it islikely that a parody will not supersede or affect the copyrighted work'smarket. 73 Furthermore, the Court noted that both parties failed topresent sufficient evidence demonstrating how 2 Live Crew's songwould affect the potential for a derivative version of the original in therap music market. 74

Justice Anthony Kennedy concurred in the Court's decision.7 5

Justice Kennedy found that two general principles underlie the copy-right exception for parody: (1) a parody may be protected if it is com-mercial in nature; and (2) the original work must be the target of thederivative work.76 Justice Kennedy stated that "[i]f we keep the defi-nition of parody within these limits, we have gone most of the waytowards satisfying the four factor fair use test in [section] 107."7 7

BACKGROUND

During the eighteenth century, the English Parliament enactedthe original copyright statute labeled, "The Act for the Encouragementof Learning."78 Eventually, the United States incorporated this copy-right concept into its Constitution, providing that "[the] Congressshall have power ... to promote the Progress of Science and useful

67. Id. at 1176.68. Id.69. Id.70. Id.71. Id. at 1177.72. Id. at 1178.73. Id. at 1177.74. Id. at 1178-79.75. Id. at 1180 (Kennedy, J., concurring).76. Id.77. Id.78. Pierre N. Leval, Toward a Fair Use Standard, 103 HLv. L. REV. 1105, 1108

(1990); Act for the Encouragement of Learning, 8 Anne ch. 19 (1709).

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Arts, by securing for limited Times to Authors and Inventors the ex-clusive Right to their respective Writings and Discoveries." 79 Thecopyright was designed to stimulate progress in the areas of art andscience for society's benefit.8 0

However, copyright laws'posed two potential problems. 8 l If theauthors were permitted to exercise exclusive ownership over their cre-ations, the creative ability of other writers would be stifled.8 2 How-ever, if the authors themselves were deprived of absolute ownership,their own creativity would be discouraged.8 3

The fair use doctrine was established as an equitable defense to acharge of copyright infringement.8 4 The doctrine allowed one personto reasonably use the copyrighted material of another person.8 5 Thiscommon law doctrine was codified in section 107 of Title 17 of theUnited States Code as the Copyright Act of 1976 ("section 107").86 Insection 107, Congress set forth four factors for courts to examine whenconsidering whether the use of a work is a fair use:

Notwithstanding the provisions of sections 106 and 106A, thefair use of a copyrighted work, including such use by repro-duction in copies or phonorecords or by any other means spec-ified by that section, for purposes such as criticism, comment,news reporting, teaching (including multiple copies for class-room use), scholarship, or research, is not an infringement ofcopyright. In determining whether the use made of a work inany particular case is a fair use the factors to be consideredshall include-(1) the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit ed-ucational purposes;

(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in re-

lation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or

value of the copyrighted work.

79. U.S. CONST. art I, § 8, cl. 8. The provision states that "[t]he Congress shallhave power ... to promote the Progress of Science and useful Arts, by securing forlimited Times to Authors and Inventors the exclusive Right to their respective Writingsand Discoveries." Id.

80. Leval, 103 HARv. L. REv. at 1107.81. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 479 (1984)

(Blackmun, J., dissenting).82. Id.83. Id.84. Fisher v. Dees, 794 F.2d 432, 435 (9th Cir. 1986).85. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549 (1985);

William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions andParody, 11 CARDOZO ARTS & ENT. L.J. 667, 668 (1993).

86. Leval, 103 HAav. L. REv. at 1105.

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The fact that a work is unpublished shall not itself bar a find-ing of fair use if such finding is made upon consideration of allthe above factors.8 7

The courts will consider a derivative work a fair use if the use is"for purposes such as criticism, comment, news reporting, teaching...scholarship, or research."88 Congress did not intend this list to be ex-haustive.8 9 Case law has expanded this list to include parody as aproductive use deserving of protection because parody is by naturecriticism.90 Therefore, before addressing the issue of fair use, thecourts must determine whether the work is a parody.91

PARODY

So long as the result of the use contributes to the public good in amanner different from that of the first author, the use will be consid-ered a parody. 92 Parodies may be afforded protection if, after consid-ering the four factors enumerated in section 107, a court finds that thefactors weigh in favor of the parodist.93

In Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta CooperativeProductions, Inc.,94 copyright holders claimed that a derivative workwas not a fair use of the original.95 The defendants were owners, pro-ducers, and creators of a play entitled Scarlett Fever, based on the filmGone With The Wind.96 The derivative play progressed through themajor episodes portrayed in Gone With the Wind and used scenery de-picting settings used in the film. 97

The copyright holders sued the owners and creators of the musicalproduction for copyright infringement in the United States DistrictCourt for the Northern District of Georgia.98 The court consideredwhether the musical production, Scarlett Fever, was a parody of GoneWith The Wind, entitled to protection afforded by the fair use doc-

87. 17 U.S.C. § 107 (1988 & Supp. V).88. Id.; Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coop. Prod., Inc., 479 F.

Supp. 351, 357 (N.D. Ga. 1979).89. Harper & Row, 471 U.S. at 561.90. Metro-Goldwyn-Mayer, 479 F. Supp. at 357; see Fisher, 794 F.2d at 440 (hold-

ing that a parody of When Sunny Gets Blue, was fair use); Elsmere Music, Inc. v. Na-tional Broadcasting Co., Inc., 482 F. Supp. 741, 747 (S.D.N.Y. 1980) (holding that aparody of I Love New York was a fair use), aff'd, 623 F.2d 252 (2d Cir. 1980).

91. Metro-Goldwyn-Mayer, 479 F. Supp. at 357.92. Id.93. Harper & Row, 471 U.S. at 561.94. 479 F. Supp. 351 (N.D. Ga. 1979).95. Metro-Goldwyn-Mayer, 479 F. Supp. at 355.96. Id. at 354.97. Id.98. Id.

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trine.9 9 The court noted that the derivative stage play as a whole didnot critically comment on the original film or novel, but simply was amusical adaptation of the original film and novel. 10 0 Therefore, theCourt held that the play could not be considered a parody.' 0 1

In Elsmere Music, Inc. v. National Broadcasting Co., Inc.,102 anadvertising agent wrote a jingle for the New York State Department ofCommerce entitled I Love New York, in an effort to revive the city'simage.103 With this advertisement in mind, the television programSaturday Night Live ("SNL") performed a sketch in which city officialsfrom Sodom discussed how to improve the image of the city. 10 4 Aspart of their campaign, three cast members sang I Love Sodom to thetune of I Love New York. 10 5

The copyright holder of I Love New York sued the National Broad-casting Company ("NBC") in the United States District Court for theSouthern District of New York, alleging the wrongful use of the songin the satirical sketch. 10 6 One issue addressed by the court waswhether SNL's sketch was a fair use of the original song.10 7 The dis-trict court determined that SNL's use of I Love New York was an ex-ample of parody. s0 8 The upbeat tune of I Love Sodom, used in thesketch to divert tourists from the city's reputation for gambling, sod-omy, and gluttony, parodied New York City's attempt to divert tour-ists from New York City's seedy reputation. 10 9 The court held thatSNL's use of the plaintiff's jingle was a parody protected under thefair use doctrine, and therefore granted NBC's motion for summaryjudgment. 110

99. Id. at 355.100. Id. at 357.

101. Id.102. 482 F. Supp. 741 (S.D.N.Y. 1980), aff'd, 623 F.2d 252 (2d Cir. 1980).103. Elsmere Music, 482 F. Supp. at 743 n.1.104. Id. at 743.105. Id.106. Id. at 743-44.107. Id. at 744-45.108. Id. at 745.109. Id. at 746.110. Id. at 747. The court's reasoning rested primarily on the evaluation of three of

the factors set out in the fair use doctrine. Id. at 745-47. First, the court determinedthat the defendant's song satirized the copyrighted piece, and therefore, was protected.Id. at 745. Second, the court considered whether the use affected the marketability ofthe original song. Id. at 747. Because a parody satirizing society could not satisfy thedemand for an original piece written for an advertisement, the marketability of thecopyrighted work was not affected. Id. Third, the court evaluated the extent of the use.Id. Although the plaintiff argued that repetition of "I Love Sodom" by the defendant atthe end of the sketch was unnecessary, the court did not agree. Id. The repetition sunga capella was necessary for satirical effect and for conjuring up the original song. Id. at745-47.

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APPLICATION OF THE FAmr USE DOCTRINE

A parody is not presumptively a fair use."' Even if courts deem aderivative work to be parody protected under the preamble to section107, whether the parody is a fair use depends on an assessment of thefour determinative factors set forth in section 107.112

Long before the enactment of section 107, then Judge JosephStory created a fair use test in Folsom v. Marsh.t1 3 In the CircuitCourt of Massachusetts, the authors of an unpublished book entitledThe Writings of President Washington sued the publishers of anotherbook entitled The Life of Washington for piracy.1 14 The action forpiracy was referred to the master in chancery who found that manypages in The Life of Washington were identical to passages in thecopyrighted work.115

The court considered whether the use of The Writings of PresidentWashington by the author of the derivative work constitutedpiracy. 1 16 In resolving this issue, Justice Story articulated a fair usetest. 117 This test required courts to address the character of the selec-tions made, the quality of the materials used, and the degree of injuryto the copyright holder. 118 Because the use of many pages from theoriginal work may have resulted in more extensive copying by otherbooksellers, and because the letters constituted one-third of the deriv-ative work, the court concluded that the original author's propertyrights had undoubtedly been invaded.1 19 Therefore, the court af-firmed the master's report and held that the derivative work infringedon the rights of the copyright holder. 120

Eventually, Congress modified and incorporated the factors ar-ticulated in Folsom into the Copyright Act of 1976.121 Since Congress'statutory enactment, courts have attempted to articulate limits im-posed by the fair use doctrine. 122

In Harper & Row, Publishers, Inc. v. Nation Enterprises,123 copy-

right holders sued for copyright infringement over the publication of

111. Fisher, 794 F.2d at 435.112. Id.113. 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901); Leval, 103 HAiv. L. REV. at 1105.114. Folsom v. Marsh, 9 F. Cas. 342, 343 (C.C.D. Mass. 1841) (No. 4901).115. Id. at 345.116. Id.117. Id. at 348-49; Leval, 103 HIAv. L. REV. at 1105.118. Folsom, 9 F. Cas. at 348-49.119. Id. at 349.120. Id.121. Leval, 103 HIRv. L. REV. at 1105.122. See infra notes 123-62 and accompanying text.123. 471 U.S. 539 (1985).

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quotes from the memoirs of President Gerald R. Ford. 124 Two pub-lishers, Harper & Row, Publishers, Inc. ("Harper & Row") andReader's Digest Association, Inc., possessed the exclusive rights topublish President Ford's unpublished memoirs. 125 Time magazinehad also contracted with Harper & Row to purchase the exclusiveright to print prepublished excerpts of the memoirs. 126 However, theeditor of The Nation was given a copy of the manuscript by an un-known source and published excerpts in a news article. 127 Time sub-sequently refused to pay the copyright holders for its right to publishmemoir excerpts. 128

Harper & Row brought suit against the defendants, Nation Enter-prises, in the District Court for the Southern District of New York.' 29

The district court held that Nation Enterprises had infringed on theplaintiffs' copyright under the Copyright Act and disregarded the de-fendants' contention of fair use.130 The derivative work did notamount to a fair use because the article had been published for profitand Nation Enterprises had taken the heart of an unpublished, copy-righted work, diminishing the value of the copyrighted work.13'

Nation Enterprises appealed to the United States Court of Ap-peals for the Second Circuit. 132 In reversing the district court's deci-sion, the Second Circuit focused on the inability of persons tocopyright facts. 133 Although the derivative work contained numerousparaphrases and facts drawn from the memoirs, the court determinedthat the derivative work only contained three hundred words thatwere copyrighted.' 34 The court's decision was based on section 107.135The court concluded that the article in The Nation was for "news re-porting" purposes, the copying of three hundred words was not exces-sive, and that there was no displacement of the original's use by thederivative work.' 36

124. Harper & Row, 471 U.S. at 542-43.125. Id. at 542.126. Id.127. Id. at 543.128. Id.129. Harper & Row Publishers, Inc. v. Nation Enter., 557 F. Supp. 1067, 1067-68

(S.D.N.Y. 1983), rev'd, 723 F.2d 195 (2d Cir. 1983), cert. granted, 467 U.S. 1214 (1984),rev'd, 471 U.S. 539 (1985).

130. Id. at 1072-73.131. Id. at 1072.132. Harper & Row Publishers, Inc. v. Nation Enter., 723 F.2d 195, 197 (2d Cir.

1983), cert. granted, 467 U.S. 1214 (1984), rev'd, 471 U.S. 539 (1985).133. Id. at 202-06.134. Id. at 206.135. Id.136. Id. at 206-08.

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The United States Supreme Court granted certiorari and reversedthe Second Circuit's decision. 137 The Supreme Court held that the usewas not a fair use as defined in section 107.138 The Court resolved theissue of whether Nation Enterprises made fair use of the President'smemoirs by considering the factors enumerated in section 107.139 TheCourt, after first determining that the purpose of the use was to reportnews, proceeded to address whether the alleged infringer would profitfrom the use of the copyrighted material without compensating thecopyright holder.140 In concluding its analysis of the first factor, theCourt stated that the derivative work had the "intended purpose ofsupplanting the copyright holder's commercially valuable right of firstpublication." 141

In reviewing the nature of the copyrighted work, the Court con-cluded that it is less willing to permit a use when the original workhas not yet been published since the author possesses the right to de-termine when the first appearance of his writings will be presented tothe public. 142 The fact that the memoirs in this case were unpub-lished weighed against a finding of fair use. 143

The Court then assessed the substantiality of The Nation's use incomparison to the original work.144 Although The Nation had not cop-ied a substantial amount of words, the Court agreed with the districtcourt that the words taken were the heart of the original work anddetermined that .the Second Circuit had improperly evaluated thisfactor. 145

Finally, the Court assessed the harmful effect of the use on themarket for the copyrighted work and the market for the derivativework.146 The actual effect of the infringement was Time's refusal topay the fee for its exclusive right to publish memoir excerpts. 147 Indrawing directly from the excerpts licensed to Time, the derivativepiece competed in the market for prepublication excerpts. 148 TheCourt concluded that The Nation's use was not permissible as a fairuse. 149

137. Harper & Row, Publishers, Inc. v. Nation Enter., 467 U.S. 1214 (1984) (certio-rari granted).

138. Harper & Row, 471 U.S. at 569.139. Id. at 560-69.140. Id. at 561-62.141. Id. at 562.142. Id. at 564.143. Id.144. Id.145. Id. at 564-65.146. Id. at 566-69.147. Id. at 567.148. Id. at 568.149. Id. at 569.

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1995] FAIR USE DOCTRINE 519

In Fisher v. Dees,I50 the United States District Court for the Cen-tral District of California explored the scope of the fair use doctrine. 151

The court considered whether the composer of a song entitled WhenSonny Sniffs Glue violated the copyright of the original song, WhenSunny Gets Blue.'5 2 Although it failed to disclose the reasons for itsdecision, the district court granted the defendant's motion for sum-mary judgment. 153 The copyright holders appealed the district court'sdecision to the United States Court of Appeals for the Ninth Circuit,which affirmed the district court's grant of summary judgment to thedefendant.154

In holding that the song was a fair use, the Ninth Circuit consid-ered the factors enumerated in section 107.155 The court consideredthe purpose and nature of the use which was to parody the copy-righted song.156 Although the parody was of a commercial nature,which weighed against the defendant's claim of fair use, the derivativesong functioned more as a social commentary than an attempt to capi-talize on the copyrighted work.157

The court also considered whether the defendant's copying of mu-sic was excessive under the circumstances.15 8 The court found thatfor a parody of a song to be :effective, the composer of the derivativework must directly copy from the copyrighted piece that which isneeded to convey criticism.' 5 9 The court determined that the defend-ant's taking was necessary to fulfill his satirical objective. 160

Finally, the court considered whether the parody usurped thecommercial demand for the copyrighted piece. 161 The court noted thatpurchasers seeking to listen to a love song would not be satisfied bylistening to the parody, so the parody did not detrimentally affect theoriginal work's market.162

THE COPYRIGHT LAws V. THE FIRST AMENDMENT

When addressing a copyright infringement case, some courts haveapplied a constitutional analysis in addition to a statutory analysis

150. 794 F.2d 432 (9th Cir. 1986).151. Fisher, 794 F.2d at 435-36.152. Id. at 434.153. Id.154. Id. at 440.155. Id. at 436-39.156. Id. at 436-37.157. Id. at 437.158. Id. at 438-39.159. Id. at 439.160. Id.161. Id. at 437-38.162. Id. at 438.


because an inherent tension exists between the First Amendment ofthe United States Constitution and the laws espoused in the Copy-right Clause of the Constitution and the Copyright Act.163 The FirstAmendment provides that "Congress shall make no law... abridgingthe freedom of speech." 164 The rights afforded by this amendmentparadoxically conflict with the Copyright Clause.165 The CopyrightClause grants Congress the power "to promote the Progress of Scienceand useful Arts, by securing for limited Times to Authors and Inven-tors the exclusive Right to their respective Writings and Discover-ies." 166 Given these conflicting constitutional provisions, Congressmust balance the interests of authors and inventors, to protect theirworks against society's interest in unobstructed expression, knowl-edge, and commerce. 167

Naturally, such a dilemma gives rise to the issue of which interestshould be afforded greater protection.' 68 Copyright protection,although recognized in the Constitution, is a privilege provided for bystatute and is characterized as a positive right.169 Freedom of speechis explicitly provided for by the Constitution and is characterized as asuperior, natural right.170 Although copyright protection issubordinate to First Amendment rights, the copyright clause has notbeen expressly repealed, and thus, must coexist with the right to free-dom of speech. 171

in an attempt to avoid the conflict characteristic of such a coexis-tence, courts and legislatures have created a "host of palliatives," in-cluding the fair use doctrine. 172 While section 106 of the CopyrightAct protects the rights of copyright holders, section 107 protects therights of the public. 173 The public interest underlying section 107 de-

163. See Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 445 F.Supp. 875, 882 (S.D. Fla. 1978), aff'd, 626 F.2d 1171 (5th Cir. 1980); Rosemont Enter.Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966), cert. denied, 385 U.S. 1009(1967); Universal City Studios, Inc. v. Sony Corp. of Am., 480 F. Supp. 429, 454 (C.D.Ca. 1979), aff'd in part, rev'd in part, 659 F.2d 963 (9th Cir. 1981), cert. granted, 457U.S. 1116 (1982), rev'd, 464 U.S. 417 (1984). Henry S. Hoberman, Copyright and theFirst Amendment: Freedom or Monopoly of Expression?, 14 PEPP. L. REV. 571, 576(1987); Walt Disney Prod. v. Air Pirates, 581 F.2d 751, 758 (9th Cir. 1978), cert. deniedsub nom., O'Neill v. Walt Disney Prod., 439 U.S. 1132 (1979).

164. U.S. CONsT. amend. I.165. Charles C. Goetsch, Parody as Free Speech-The Replacement of the Fair Use

Doctrine by First Amendment Protection, 3 W. NEw ENG. L. REV. 39, 58 (1980).166. U.S. CONST. art. I, § 8, cl. 8.167. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).168. See Hoberman, 14 PEPP. L. REV. at 575.169. Id.170. Id.171. Id. at 576.172. Id.173. 17 U.S.C. § 106 (1988 & Supp. V); Hoberman, 14 PEPP. L. REV. at 580-81 n.57;

see 17 U.S.C. § 107 (1988 & Supp. V).

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FAIR USE DOCTRINE

rives "from the [f]irst [a]mendment interest in access to informa-tion."174 As such, in weighing the conflicting interests, courtsultimately balance the statutory rights of the copyright holder againstthe constitutional rights of the public. 175

In Rosemont Enterprises, Inc. v. Random House, Inc.,176 a copy-right holder of magazine articles entitled The Howard Hughes Story,brought an action against the publisher and author of a biography en-titled Howard Hughes-a Biography by John Keats.177 The UnitedStates Court of Appeals for the Second Circuit addressed the issue ofwhether the lower court erred in granting the plaintiff's motion for apreliminary injunction. 178 The Second Circuit reversed the districtcourt's conclusion that a copyright infringer who uses an original workfor commercial purposes is prohibited from raising the fair use privi-lege. 179 The court stated that the "copyright holder's interest in amaximum financial return" may outweigh the public's interest if "dis-tribution would serve the public interest in the free dissemination ofinformation."l80

In Time Inc. v. Bernard Geis Associates,18' Time, Inc. purchasedthe rights to a film of President John F. Kennedy's assassination andpublished portions of the film in Life magazine.18 2 Time, Inc. broughtsuit in the United States District Court for the Southern District ofNew York against the defendant who had allegedly used copies offrames from the plaintiff's film to support allegations purported in hisbook. 8 3 As in Rosemont, the court concluded that the "public interestin having the fullest information available" was more important thanthe plaintiff's injury.' 8 4

The United State Supreme Court has implicitly upheld FirstAmendment principles against fair use.' 8 5 In Sony Corporation ofAmerica v. Universal City Studios, Inc.,186 copyright holders of pub-licly broadcast television programs brought a copyright infringementaction against manufacturers of home video tape recorders("TRs").'8 7 According to the plaintiffs, the purchasers of the VTRs

174. Hoberman, 14 PEPP. L. REv. at 581.175. Rosemont Enter., 366 F.2d at 307.176. 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967).177. Rosemont Enter., 366 F.2d at 304.178. Id.179. Id.180. Id. at 307.181. 293 F. Supp. 130 (S.D.N.Y. 1968).182. Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 131 (S.D.N.Y. 1968).183. See Time, 293 F. Supp. at 130-32; Hoberman, 14 PEPP. L. REV. at 582.184. Time, 293 F. Supp. at 146.185. Hoberman, 14 PEPP. L. REV. at 584.186. 464 U.S. 417 (1984).187. Sony, 464 U.S. at 420.

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had recorded their programs.""' The Plaintiffs argued that becausethe manufacturers marketed the VTRs, the manufacturers should beheld liable for infringement.18 9

The United States District Court for the Central District of Cali-fornia entered judgment for the manufacturer after concluding thatrecording material which had been broadcast over public airwaves didnot amount to copyright infringement. 190 The Court's decision wassupported in part by the fact that: "[t]he purpose of this use [taping ofcopyrighted programs for viewing at a later time] is to increase accessto the material plaintiffs choose to broadcast. This increase in accessis consistent with the First Amendment policy of providing the fullestpossible access to information through the public airwaves." 191

The United States Court of Appeals for the Ninth Circuit reversedthe lower court's judgment, holding that Congress did not intend forhome videorecording to be considered a fair use. 192 The manufacturerappealed the Ninth Circuit's decision, and the United States SupremeCourt granted certiorari. 193 The Supreme Court reversed the NinthCircuit's conclusion. 194

Although the Supreme Court did not expressly incorporate FirstAmendment principles into its fair use analysis, the Court did ac-knowledge Congress' task of balancing "the interests of authors andinventors in the control and exploitation of their writings and discov-eries on the one hand, and society's competing interest in the free flowof ideas, information and commerce on the other hand."1 95 As theCourt noted, "Ic]reative work is to be encouraged and rewarded, butprivate motivation must ultimately serve the cause of promotingbroad public availability of literature, music, and the other arts." 196

ANALYSIS

Until Congress' codification of the fair use doctrine in section 107of Title 17 of the United States Code ("section 107") courts had evalu-ated fair use issues based solely on common law. 197 Since the enact-ment of section 107, the scope of the doctrine is still uncertain because

188. Id.189. Id.190. Sony, 480 F. Supp. at 432.191. Id. at 454.192. Universal City Studios, Inc. v. Sony Corp. of Am., 659 F.2d 963, 977 (9th Cir.

1981), cert. granted, 457 U.S. 1116 (1982), rev'd, 464 U.S. 417 (1984).193. Sony, 457 U.S. 1116 (1982) (granting certiorari).194. Sony, 464 U.S. at 456.195. Sony, 464 U.S. at 429; Hoberman, 14 PEPP. L. REV. at 584.196. Sony, 464 U.S. at 431-32.197. William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presump-

tions and Parody, 11 CARDOZO ARTS & ENT. L.J. 667, 668-69 (1993).

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Congress intentionally wished to preserve the common law nature ofthe doctrine by allowing courts to continue applying the doctrine tosituations on a case-by-case basis. 198 However, the United StatesSupreme Court has attempted to establish a concrete test to applywhen determining whether a use should be afforded protection undersection 107.199

The Supreme Court in Campbell v. Acuff-Rose Music, Inc.20 0 es-tablished a better structured framework for analyzing the fair use doc-trine in two ways: by relying on past cases which applied section 107,and by rejecting the United States Court of Appeals for the Sixth Cir-cuit's decision which was based on reasoning unsupported by prece-dent. 20 1 The Court's opinion was rooted in precedent and aided indefining the fair use doctrine. 20 2 The decision was also supported byFirst Amendment principles. 20 3

FAIR USE CONSIDERATIONS

As proposed in Metro-Goldwyn-Mayer, Inc. v. Showcase AtlantaCooperative Productions, Inc.,204 the Court initially examined thesong Pretty Woman as a whole.20 5 Unlike the use in Metro-Goldwyn-Mayer, which was simply a duplication of the original work, 2 LiveCrew's Pretty Woman criticized and commented on the original piece,Oh, Pretty Woman, composed by Orbison and Dees.20 6 The Court rec-ognized in Campbell the critical nature of the parody and decided tofollow the reasoning of those courts which have held that parody fitswithin the meaning of the fair use doctrine. 20 7 However, because aparody is not presumptively fair, the Court proceeded to apply the fourrelevant factors to the use. 208

198. Fisher v. Dees, 794 F.2d 432, 435 (9th Cir. 1986).199. See infra notes 204-47 and accompanying notes.200. 114 S. Ct. 1164 (1994).201. See Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1171-79 (1994); see

infra notes 204-47 and accompanying text.202. See infra notes 248-61 and accompanying text.203. See infra notes 204-61 and accompanying text.204. 479 F. Supp. 351 (N.D. Ga. 1979).205. Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coop. Prod., Inc., 479 F. Supp.

351, 357 (N.D. Ga. 1979); see Campbell, 114 S. Ct. at 1172.206. Metro-Goldwyn-Mayer, 479 F. Supp. at 357; Campbell, 114 S. Ct. at 1173.207. Campbell, 114 S. Ct. at 1171-73; see Fisher, 794 F.2d at 440 (holding that par-

ody of When Sunny Gets Blue constituted fair use); Elsmere Music, Inc. v. NationalBroadcasting Co., Inc., 482 F. Supp. 741, 747 (S.D.N.Y. 1980) (holding that parody of ILove New York constituted a fair use) aff'd, 623 F.2d 252 (2d Cir. 1980); Metro-Gold-wyn-Mayer, 479 F. Supp. at 357 (holding that a parody will be afforded protection underthe fair use doctrine if it makes a critical comment about the original work).

208. Campbell, 114 S. Ct. at 1172-79.

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The First Factor

The Court first examined the nature of the use. 20 9 While the usehad been characterized as a parody, the Court also evaluated the com-mercial nature of the use. 210 The Court correctly concluded that thefact that a use is of a commercial nature does not conclusively estab-lish that it is not afforded protection under section 107.211

The Sixth Circuit failed to adhere to this principle when address-ing the first factor in relation to the Campbell case.212 The Sixth Cir-cuit admitted that a commercial purpose alone does not control fairuse, but relied heavily on this factor in reaching its decision that theuse was unfair.213 According to the Court in Campbell, the Sixth Cir-cuit erred in assigning dispositive weight to the parody's commercialnature.214 The Court was correct in stating that the Sixth Circuit'sinflation of the first element's significance was inconsistent with thestatute's language that the purpose and character is only one of theelements to consider.215 The Court also correctly noted that the SixthCircuit's interpretation was inconsistent with the Court's conclusionin Sony Corporation of America v. Universal City Studios, Inc.2 16 thatthe character of a work is not conclusive evidence of fair use and mustbe weighed when determining whether the use will be afforded protec-tion under the fair use doctrine. 217

The Second Factor

The Court in Campbell reviewed the nature of the originalwork.218 Although the Court spent little time assessing this factor, itrecognized its prior holdings stating that some works deserve greaterprotection than other works. 219 In Harper & Row Publishers, Inc. v.Nation Enterprises,220 the Court stated that use of an unpublishedwork, as opposed to a published work, will be afforded less protectionunder the fair use doctrine. 221 The author of an unpublished work

209. Id. at 1171-74.210. Id. at 1173-74.211. Id. at 1174; see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,

448-49 (1984).212. Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1437 (6th Cir. 1992), cert.

granted in part, 113 S. Ct. 1642 (1993), rev'd, 114 S. Ct. 1164 (1994).213. Id. at 1436-37.214. Campbell, 114 S. Ct. at 1174.215. Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 561 (1985);

Campbell, 114 S. Ct. at 1164.216. 464 U.S. 417, 448-49 (1984).217. See Sony, 464 U.S. at 448-55 n.40; Campbell, 114 S. Ct. at 1174.218. Campbell, 114 S.Ct. at 1175.219. Id.; see Harper & Row, 471 U.S. at 564; Sony, 464 U.S. at 455 n.40.220. 471 U.S. 539 (1985).221. Harper, 471 U.S. at 564.

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has a right to regulate its first publication. 2 22 In Sony, the Court com-pared a copyrighted motion picture to a copyrighted news broad-cast. 2 2 3 The Court noted that use of a motion picture would have aweaker claim to protection pursuant to section 107 than use of a newsbroadcast. 2 24 The Court found that the original work fell within theprotective purpose of the Copyright Act.2 25

The Third Factor

The Court in Campbell correctly assessed the amount of the copy-righted work that 2 Live Crew used in composing Pretty Woman. 226

In evaluating this factor, the Court recognized the importance of look-ing at the quality as well as the quantity of the taking.2 27 The Courtapplied the test articulated in Elsmere Music, Inc. v. National Broad-casting Company, Inc.,228 which specifically addressed use as a par-ody.2 29 A parody may consist of the heart of the original work if it isnecessary for the audience to recognize the satirical effect. 230 TheCourt admitted that 2 Live Crew copied the first line of lyrics and thebass riff from the original work. 23 1 Although such a taking may havegone to the heart of Oh, Pretty Woman, the Court recognized that 2Live Crew created additional lyrics which were markedly differentfrom the lyrics of Oh, Pretty Woman and took no more than was neces-sary for society to recognize the wit.

2 3 2

While the Sixth Circuit properly concluded that "no more wastaken than necessary," the Court in Campbell correctly found that theSixth Circuit erred in holding that 2 Live Crew's taking was exces-sive.233 According to the Sixth Circuit, 2 Live Crew had taken theheart of the original, and thus, the taking was qualitatively substan-tial.2 34 The courts in Elsmere Music and Fisher v. Dees2 35 did not re-quire that the alleged infringer avoid taking the heart of the original,but required that the defendant use "no more than necessary to con-

222. Id.223. Sony, 464 U.S. at 455 n.40.224. Id.225. Id. at 1175.226. Campbell, 114 S. Ct. at 1176; see Fisher, 794 F.2d at 438-39; Elsmere Music,

482 F. Supp. at 744-47.227. Campbell, 114 S. Ct. at 1175.228. 482 F. Supp. 741 (S.D.N.Y. 1980), aff'd, 623 F.2d 252 (2d Cir. 1980).229. See Elsmere Music, 482 F. Supp. at 747; Campbell, 114 S. Ct. at 1176.230. Elsmere Music, 482 F. Supp. at 744-47.231. Campbell, 114 S. Ct. at 1176.232. Id.233. See Campbell, 972 F.2d at 1438; Campbell, 114 S. Ct. at 1176. See Fisher, 794

F.2d at 438-39; Elsmere, 482 F. Supp. at 747.234. Campbell, 972 F.2d at 1438.235. 794 F.2d 432 (9th Cir. 1986).

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jure up the original" work.236 Based on the holdings of these cases,when the Sixth Circuit concluded that 2 Live Crew had used onlywhat was necessary of the copyrighted work, it should have decidedthat the third factor weighed in favor of 2 Live Crew. 2 37

The Fourth Factor

The Court in Campbell correctly determined the effect of 2 LiveCrew's use upon the market for the original song and upon the marketfor derivative uses.238 As stated in Fisher, courts considering thefourth factor must determine whether the derivative work "fulfills thedemand for the original."23 9 Copyright infringement arises when thederivative work usurps the demand for the original work.2 40 TheCourt accepted the Fisher view and properly concluded that 2 LiveCrew's parody did not usurp the demand for Orbison's Oh, Pretty Wo-man, but merely criticized the copyrighted work.24 1

However, the Sixth Circuit relied on the rule articulated in Sonywhen assessing the fourth factor. 24 2 Following the reasoning of theSupreme Court in Sony, the Sixth Circuit concluded that "[if] the in-tended use is for commercial gain, that likelihood may be pre-sumed."2 43 Because the Sixth Circuit had already determined that 2Live Crew's use of Oh, Pretty Woman was wholly commercial, it pre-sumed that a likelihood of future harm to Acuff-Rose Music, Inc. ex-isted. 244 However in Sony, the Court addressed a case in which thedefendant duplicated the entire original work.24 5 In Campbell, theoriginal work was not entirely duplicated. 24 6 Therefore, 2 Live Crew'sparody did not usurp the demand for the original work, leading to theCourt's correct conclusion to resolve this element in favor of 2 LiveCrew.

2 4 7

236. Elsmere, 482 F. Supp. at 747; Fisher, 794 F.2d at 438-39.237. See supra notes 226-36 and accompanying text.

.238. Campbell, 114 S. Ct. at 1177-79.239. Fisher, 794 F.2d at 438.240. Id.241. Id. at 1173-78; Campbell 972 F.2d at 1445 (Nelson, J., dissenting) (stating that

the original work was intended for a country music audience while 2 Live Crew's songwas aimed at the black populace).

242. Campbell, 972 F.2d at 1438.243. Id.244. Id.245. Sony, 464 U.S. at 419-20.246. Campbell, 114 S. Ct. at 1176.247. See supra notes 241-46 and accompanying text.

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FIRST AMENDMENT CONSIDERATIONS

In reviewing 2 Live Crew's use of Oh, Pretty Woman, the Court inCampbell based its decision on statutory and common law interpreta-tion.24s Although the Court did not apply a First Amendment analy-sis in formulating its holding, such an analysis supports the Court'sdecision.249

A First Amendment primacy argument supports the Court's deci-sion for 2 Live Crew.250 Natural rights guaranteed by the Constitu-tion demand stricter judicial scrutiny than positive rights created bystatute. 251 The interest of 2 Live Crew and the public's interest in the"free dissemination of information" outweighed Acuff-Rose's interestbecause the former interests were rooted in the First Amendment andhad obtained a status superior to that of the latter interest.25 2 If theCourt had elected to incorporate this rule, 2 Live Crew's use would beprotected under the theory that the rap group's First Amendmentright, guaranteeing expression free from congressional interference,supersedes any other right.2 53

The common law, which reflects First Amendment principles, isalso consistent with the Court's decision. 254 The Court in Campbellexpressed that the "goal of copyright, to promote science and the arts,is generally furthered by the creation of transformative works."25 5 Asthe Court stated, the purpose of its analysis was to determine whether2 Live Crew's work was transformative, "altering the first with newexpression, meaning, or message."256 The Court determined that 2Live Crew's work amounted to criticism and was not simply, duplica-tive of the original work.25 7 2 Live Crew deserves the same protectionas afforded by the courts to the alleged copyright infringers inRosemont Enterprises, Inc. v. Random House, Inc.,258 Time Inc. v. Ber-nard Geis Associates,259 and Sony.260 Similar to the defendants in

248. Campbell, 114 S. Ct. at 1170-79.249. See infra notes 251-61 and accompanying text.250. See infra notes 251-52 and accompanying text.251. Henry S. Hoberman, Copyright and the First Amendment: Freedom or Monop-

oly of Expression?, 14 PEPP. L. REV. 571, 575 (1987).252. Rosemont Enter., Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966),

cert. denied, 385 U.S. 1009 (1967); see supra notes 173-74 and accompanying text.253. See supra notes 173-74 and accompanying text.254. See infra notes 255-61 and accompanying text.255. Campbell, 114 S. Ct. at 1171.256. Id.257. Id. at 1173-76.258. 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967).259. 293 F. Supp. 130 (S.D.N.Y. 1968).260. See Rosemont Enterprises, 366 F.2d at 304; Time Inc. v. Bernard Geis Assoc.,

293 F. Supp. 130, 146 (S.D.N.Y. 1968); Sony, 464 U.S. at 456.

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these cases, 2 Live Crew created a work providing new informationthat it had the right to disperse to the public. 261

CONCLUSION

For hundreds of years, courts have recognized the common lawdoctrine of fair use. However, until the enactment of the CopyrightAct of 1976, there had been no articulation of what exactly constitutesthis affirmative defense. Although courts will continue to evaluatefair use on a case-by-case basis, they have begun to more clearly definethe parameters of the doctrine. If courts continue to differentiate be-tween what is and what is not protected by the doctrine, they will con-tinue to build a sound basis for addressing fair use issues.

In Campbell v. Acuff-Rose Music, Inc.,262 the United StatesSupreme Court reaffirmed that the scope of the doctrine includes par-ody. The Supreme Court did not elect to establish a novel interpreta-tion of the doctrine to include such a derivative work as PrettyWoman, but instead adhered to the interpretations of courts whichhad already addressed a use for the purposes of parody. As a result,through its decision in Campbell, the Court promoted consistency andpredictability in applying the fair use doctrine.

Erin Maggio Calkins-96

261. See supra notes 256-60 and accompanying text.262. 114 S. Ct. 1164 (1994).

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